SC puts an end to ED’s arrest spree

The Supreme Court’s order last week which limited the powers of the Enforcement Directorate (ED) to arrest a person accused under the Prevention of Money Laundering Act (PMLA) is in line with some of its other judgements underlining the importance of the right to life and personal freedom.

The court held that the ED cannot arrest a person under the PMLA once a special court takes cognisance of its complaint, and the agency will have to approach the court if it wants custody of that person. If an accused appears before the authorities in response to a summons, it cannot be said that the person is in custody, and by extension, it is not necessary for him to apply for bail.

It is up to the ED to apply to the court for custody, giving specific reasons. The court also said that an accused who appears in a special court could be exempt from personal appearance in future. 

The judgement is important because of the arbitrary ways in which the draconian PMLA is being used by the ED to arrest people and hold them in custody for long.

Getting bail is extremely difficult because of two tough conditions: the accused has to prove in court that he is innocent, and also convince the judge that he will not commit an offence while on bail. So to be arrested under the PMLA is to be condemned in jail for years, especially because the conviction rate is low. Many accused persons waste years of their life in jail in such cases.

The ED is known to be arrest-happy and has used its power too liberally in the last few years. Opposition politicians, including AAP leaders like Arvind Kejriwal, have been victims of the ED’s actions. Though Kejriwal got bail, many others are still in jail, after being repeatedly denied bail.

A restraint on the ED’s powers of arrest is therefore welcome. The arrest of a citizen involves the constitutional and human rights of that person and so the power to arrest should be used judiciously.

The Supreme Court has said in other cases that unreasonable curbs on freedom even for a day are wrong. In the present case, the court was addressing the question of whether an accused in a money laundering case has to meet the stringent twin-test for bail when a special court has taken cognisance of the case.

By ruling that the ED cannot arrest a person once a complaint is filed, the court has prevented many arrests and protected the right to life and personal liberty of citizens. It reduces the scope of the draconian law to curb the fundamental rights
of citizens.